Crown presses Hart on memory gaps at London hockey trial

Content advisory: This article includes graphic language and details of alleged sexual assault

LONDON, ONT. – Crown attorney Meaghan Cunningham challenged Carter Hart Friday on the numerous gaps in his memory relating to an alleged sexual assault in a downtown London hotel room on June 19, 2018, asking how he could be certain everything that happened in the room was consensual if he couldn’t recall so many moments from the evening.

“You spent more time in that room doing things for which you have no memory than doing things for which you have a memory,” Cunningham suggested.

“I’m not sure,” Hart answered.

Hart, who was the first of five members of Canada’s 2018 world junior hockey team to testify in their sexual assault trial, maintained he was certain that all of the sexual activity in the hotel room seven years ago was consensual.

“You know for sure you never felt like things were getting out of hand in that room?” Cunningham asked.

“Yes,” Hart answered.

“Even though you can remember less than half of what took place in the room?” Cunningham asked.

“Yes,” Hart answered.

Hart, Michael McLeod, Dillon Dube, Alex Formenton and Callan Foote are charged with sexually assaulting a woman in McLeod’s hotel room in the early morning hours of June 19, 2018. The woman is referred to as E.M. in court documents and her identity is protected by a publication ban. McLeod faces a second charge of party to the act. The players have all pleaded not guilty.

Hart’s testimony came after McLeod declined the opportunity to testify in his defence.

Hart acknowledged on Friday that he was intoxicated and has significant memory gaps about the evening of June 18 and early morning of June 19, 2018.

He testified that he didn’t remember all of the players who were in McLeod’s hotel room, that he couldn’t recall whether E.M. got dressed and then undressed during the evening, that he didn’t know if he spoke to E.M. when he entered the room, that he didn't remember if he was egging on other players to have sex with E.M., and that he didn’t remember how players were reacting to E.M. when she was engaged in sexual acts with some of their teammates.

A day after he testified that he “locked eyes” with one of his teammates when he was receiving oral sex, Hart also said he couldn’t remember the player he made eye contact with.

Hart testified that he couldn’t remember being in the hotel room when McLeod filmed a purported consent video with E.M. at 3:25 a.m. He also previously testified that the events in the room were “awkward.”

Cunningham played that video on Friday, which begins with Hart being heard telling the group of players he would invite teammate Dante Fabbro saying, “I’ll get Fabs, I’ll get Fabs.”

Two minutes later, Hart sent Fabbro a text that said, “Come to 209.”

“I suggest you wouldn’t be trying to get him in the room unless you felt it was fun and exciting,” Cunningham said. “The guys in the room were essentially acting like they couldn’t believe their luck. Here was a naked woman performing sex acts on anyone who wanted it. It wasn’t shock and horror.”

“I thought it was pretty cool,” Hart answered.

Despite his memory issues, Hart testified he was certain that no one spit on E.M., slapped her, or degraded or laughed at her.

"I don't think anyone would have done anything to hurt her," Hart testified at one point. "I think if something happened that she didn't want, I would have put a stop to it. Other guys would have. I wouldn't have stayed in the room as long as I did."

E.M. has alleged that after she had consensual sex with McLeod, he surreptitiously invited his teammates to his room and that she was sexually assaulted for hours.

The Crown has alleged that Formenton had sex with E.M. in the bathroom, that McLeod, Hart and Dube received oral sex from the complainant, that Dube slapped E.M.’s naked buttocks, that Foote did the splits over E.M.’s head and “grazed” his genitals over her head, and that McLeod had sex with E.M. for a second time in the hotel room bathroom.

E.M. testified earlier that players were spitting on her and slapping her, and at one point, one of the players suggested she put golf balls in her vagina and asked aloud if she “could take” an entire golf club inside of her. E.M. testified she went into an autonomous state and did whatever she had to do to get out of the room safely.

Hart, who is 26, testified on Friday that following a Hockey Canada ring ceremony in London on June 18, 2018, he was out to party with his teammates and to also pursue a possible sexual encounter.

After dancing and drinking at Jack’s bar, Hart left and began walking to Joe Kool’s, another bar where Formenton and Robert Thomas were spending time with team coaches because both players were underage and had not been allowed to enter Jack’s.

At 1:13 a.m., Hart sent a text message to a team group chat saying, “Rippers anyonr [sic]… I’m going.”

Hart said no one responded to his message.

An hour later, McLeod sent the group a text at 2:10 a.m. that said, “Who is up for a 3 way quick… 209-mikey”

“I’m in,” Hart answered at 2:19 a.m.

Hart testified he did not believe that was an invitation for the entire team to engage in sexual activity. He said he assumed it was “an agreed-upon plan” between McLeod and a woman.

“Why assume that?” Cunningham asked.

“Usually, most people don’t send out a text if you have a person who is not agreeing to it,” Hart testified.

“You’re just assuming that he wouldn’t make that invitation if it wasn’t something she’d be interested in?” Cunningham asked.

“That’s correct,” Hart said.

Hart didn’t know the woman’s age, how drunk she might be, what she looked like or whether she was willing to have group sex, but still told McLeod he would accept his offer, Cunningham said.

“You were putting a lot of faith in your friend Mr. McLeod to set something up that was morally acceptable to you,” Cunningham asked.

“Yes,” Hart said.

Cunningham also asked Hart about Foote allegedly doing the splits overtop of E.M. Cunningham said that because everything going on in the hotel room was sexual and because the players had seen Foote do the splits countless times, it would make sense that he did splits while he was naked.

“From your perspective, there's nothing particularly exciting about seeing a fully clothed guy who everyone already knows can do the splits, do the splits, right?” Cunningham said. “What would be more exciting would be to see a guy with no pants on do the splits right over E.M.’s face... Don't you agree? That would be more exciting?”

“That’s pretty weird,” Hart said.

“Well, the whole night was weird, wasn’t it?” Cunningham asked.

Hart agreed.

On Friday afternoon, Cunningham asked Hart about his participation in a group text on June 26, 2018, in which Dube wrote, “Let’s not make her sound too crazy,” and about Hart’s text message asking the other 11 players on the group chat, “What should I say to Bully?”

Hart was referring to Hockey Canada executive Shawn Bullock.

“I was looking for clarification,” Hart said. “Hockey Canada took those things really seriously.”

Hart said he was aware of two players on Hockey Canada’s U-17 national team who had been suspended for two years for bringing a girl to their hotel room.

"You were prepared to lie to Bully in order to not get into trouble, right?" Cunningham asked.

"Not to lie, just to make sure," Hart said. "I wasn't sure exactly what to say to him regarding just the hockey aspect of things."

"You were afraid if you told him the truth, you'd get into trouble, right?" Cunningham asked.

"That we were partying late, yes," Hart answered.

Cunningham kept pressing Hart on his messages in the group chat asking whether he had obtained specific consent for oral sex and asked E.M. whether she was okay with everything that was going on.

“I suggest that’s because you had concerns about whether E.M. was actually consenting to everything that happened in that room?” Cunningham asked.

“No,” Hart answered.

“She’s naked in the room with 10 or so young men...The specific things that you can recall her saying in the room are, ‘Somebody come f--k me’ and ‘If no one is going to come f--k me, I’m just going to leave.’...You believed that by saying those things, EM was essentially communicating to you that she was consenting to pretty much any sexual act with any guy in the room...” Cunningham suggested.

"I did think that it seemed like she was consenting to people," Hart said. "She was putting that offer to everybody in the room."

Cunningham reminded Hart that he previously testified that he was open to taking her up on "one of her offers."

"You'd agree with me that at the time you put your penis in her mouth, you haven't actually heard her offer oral sex, right?" Cunningham asked.

"At the time she had offered for somebody to f--k her," Hart answered.

"And putting your penis in her mouth is not f--king her, is it?" Cunnigham asked.

"No," Hart answered.

Formenton’s lawyer, Daniel Brown, ended the day saying he would take the weekend to consider if his client will testify next week.